We wrote, in July last year, about the case of Lanes Group plc –v- Galliford Try Infrastructure Ltd, where an adjudicator's decision had been declared a nullity on the grounds of apparent bias.
What the adjudicator had done was to give a preliminary view of the case on receipt of Galliford's referral and before Lanes had responded. The adjudicator's subsequent decision looked very like his preliminary view and Lanes cried "foul". They said that it appeared that the adjudicator had already made up his mind before he'd even seen their response and that was a breach of natural justice. They referred the matter to a judge.
The judge agreed. He said that, although the view was expressed to be preliminary, it looked very much like a draft decision. Whether the adjudicator had actually made up his mind before reading the response was irrelevant because any bias only had to be apparent. Justice not only had to be done, it had to be seen to be done. The judge declared the adjudicator's decision to be unenforceable. Galliford appealed to the Court of Appeal.
The Court of Appeal allowed the appeal and overturned the judge's decision. Jackson LJ said that there was nothing objectionable in an adjudicator setting out his provisional view at an early stage of proceedings; this would give the parties an opportunity to correct any errors in the judge's thinking or to concentrate on matters which appeared to be influencing the judge.
He said:
"Of course, it is unacceptable if the judge reaches a final decision before he is in possession of all relevant evidence and arguments which the parties wish to put before him. There is, however, a clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties.
In my view the fair minded observer...would have no difficulty in deciding this case. He would characterise the Preliminary View as a provisional view, disclosed for the assistance of the parties, not as a final determination reached before [the adjudicator] had considered Lanes' submissions and evidence.
In my view the adjudicator's decision was not tainted by apparent bias or apparent pre–determination. Therefore [the] award was and is enforceable."
This decision will be of most interest to adjudicators, who may have been very careful, since last June, not to let the cat out of the bag before publishing their final decision.
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